Citation Nr: 1511142
Decision Date: 03/17/15 Archive Date: 03/27/15
DOCKET NO. 11-05 403A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to an effective date earlier than July 15, 2010, for the grant of service connection for tinnitus.
2. Entitlement to service connection for posttraumatic stress disorder (PTSD).
3. Entitlement to service connection for an acquired psychiatric disorder, previously claimed as bipolar disorder.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M. Donohue, Counsel
INTRODUCTION
The Veteran served on active duty from January 1972 to August 1976 and from January 1978 to March 1983.
These matters come before the Board of Veterans' Appeals (Board) on appeal of June 2010 and March 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.
The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in May 2014. A transcript of the hearing has been associated with the Veteran's VA claims file.
The Board finds that additional potentially relevant service personnel records have been received and the previously denied claim of service connection for an acquired psychiatric disorder must be reconsidered pursuant to 38 C.F.R. § 3.156(c).
FINDINGS OF FACT
1. In a February 2004 decision, the AOJ confirmed and continued a prior denial of service connection for tinnitus.
2. A claim to reopen the previously denied issue of entitlement to service connection for tinnitus was not received prior to July 15, 2010.
3. The preponderance of the competent and credible evidence establishes that the Veteran does not have a valid diagnosis of PTSD.
4. The evidence of record does not support a finding that a relationship exists between a diagnosed acquired psychiatric disorder and any event or incident of the Veteran's active service.
CONCLUSIONS OF LAW
1. An effective date prior to July 15, 2010, for the grant of service-connected for tinnitus is not warranted. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2014).
2. The Veteran does not have PTSD due to disease or injury that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014).
3. The Veteran's acquired psychiatric disorders are not due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014).
A. Duty to Notify
With respect to the duty to notify, VCAA notice is not necessary for the Veteran's earlier effective date claim because the outcome of this issue depends exclusively on documents which are already contained in the Veteran's VA claims file. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). Here, no additional development could alter the evidentiary or procedural posture of this case. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).
With respect to the Veteran's PTSD and acquired psychiatric disorder claims, the AOJ issued a VCAA notice letter to the Veteran in April 2010, prior to the initial adjudication of his claims. This letter informed the Veteran of what evidence was required to substantiate his claims and of his and VA's respective duties for obtaining evidence. The letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess v. Nicholson, 19 Vet. App. 473 (2006).
B. Duty to Assist
With respect to the Veteran's earlier effective date claim, the outcome of this claim rests with evidence which is already in the claims folder and, therefore, no further development under VCAA is required. See Mason v. Principi, 16 Vet. App. 129, 132 (2002).
With respect to the Veteran's PTSD and acquired psychiatric disorder claims, the Board finds that all necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran. Specifically, the record contains the Veteran's service treatment records, service personnel records, VA treatment records, records from the Social Security Administration, lay statements, and the May 2014 hearing transcript.
Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim.
Here, the record is lacking any competent evidence of a diagnosis of PTSD and there are no persistent or recurrent symptoms of this disability. As discussed in detail below, VA treatment records document that a PTSD screening test was negative. See a July 2009 VA treatment record. Phrased differently, clinical testing did not suggest the presence of PTSD. While the Veteran requested to be tested for PTSD in April 2010, the treating clinician noted that the Veteran's main psychiatric problems were his "substance abuse history and mood disorder-depressive disorder, not PTSD." Furthermore, during the May 2014 hearing, the Veteran, through his representative, acknowledged that he did not have PTSD. See Board Hearing Transcript (Tr.) 5. In addition, the Veteran has not alleged any specific stressors in service. Accordingly, neither the first nor the second McLendon element has been met for this issue and a VA examination is not warranted.
With respect to the Veteran's claim for an acquired psychiatric disorder other than PTSD, the record is missing critical evidence of an event, injury, or disease that occurred in service, McLendon element (2). In this case, as discussed in detail below, the Board finds the Veteran's statements of an in-service injury to be not credible. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). As a result, the Veteran's claim is being denied on this basis.
With respect to the third McLendon element, (association with service), the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006).
In this regard, the competent evidence of record in the present appeal does not demonstrate an association between the Veteran's service and his diagnosed psychiatric disorders. The Board has carefully considered the Court's language in McLendon - that the threshold for showing this association is a low one. However, the Court's language makes it clear that there is in fact a threshold. In this case, only the Veteran's contentions provide any suggestion of such association. The Board does not find the Veteran's contentions to rise to the level of the "indication of an association" referred to in 38 U.S.C.A. § 5103A or in McLendon.
As described above, VA has notified the Veteran of what evidence must show to establish service connection for PTSD or an acquired psychiatric disorder other than PTSD. Should he wish to seek service connection for these disabilities in the future, he is encouraged to submit evidence that describes an in-service injury, disease, or event, and evidence suggesting that his disabilities are related to his active duty service.
The record reflects that at the May 2014 hearing, the undersigned Veterans Law Judge clarified the issues on appeal, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.
II. Earlier Effective Date Claim
Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).
In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.
Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).
"Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).
A. Analysis
The Veteran is seeking an effective date earlier than July 15, 2010 for the grant of service connection for tinnitus. During the May 2014 hearing, the Veteran argued that he was diagnosed with tinnitus in 1989, and his effective date should be altered to reflect the date of his diagnosis. See Board Hearing Transcript (Tr.) 23.
As noted, in general, the effective date of an evaluation and award of compensation based on an original claim, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400.
B. Date of Claim
While the record reflects that the Veteran initially filed a claim for service connection for tinnitus in December 1988, this claim was denied by the RO in a July 1989 rating decision.
The RO last denied the Veteran's petition to reopen his claim for service connection for tinnitus in a February 2004 rating decision. The Veteran was notified of this decision and his appellate rights in a letter dated February 23, 2004. He did not appeal this decision and no new evidence was received within one year of the RO's decision.
The Board has reviewed the Veteran's VA claims folder and can find no indication that there was a pending, unadjudicated claim of service connection prior to July 15, 2010. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).
In this capacity, the Board notes that the Veteran argued in his May 2011 Notice of Disagreement that he filed a claim to reopen on March 10, 2010. Upon review, however, this was a petition to reopen the Veteran's claim of service connection for an acquired psychiatric disorder; the statement did not reference his tinnitus.
The Veteran has not pointed to any medical record or any other communication to VA which could serve as an application to reopen the previously-denied claim. As discussed, the Veteran's prior claim was acted upon by the RO and ultimately denied.
In short, while the Board has considered the Veteran's argument, the record clearly indicates that his original December 1988 claim was denied by the RO in July 1989. While the Veteran attempted to reopen his claim on several occasions, his claim was most recently denied by the RO in February 2004. The Veteran did not appeal this decision and no new evidence was received within one year of the RO's decision. The February 2004 rating decision is therefore final.
Accordingly, to the extent the Veteran argues that there was a claim pending when service connection was granted, such argument is without merit.
C. Date Entitlement Arose
Having determined that the Veteran's claim was filed on July 15, 2010, the Board must now determine when entitlement to service connection arose. In this capacity, the Board notes that the Veteran testified during the May 2014 hearing that he has complained of tinnitus since 1989. See Board Hearing Tr. 22.
To the extent the Veteran contends that entitlement to service connection arose with the onset of his symptoms, the effective date assigned to his tinnitus would remain July 15, 2010. As noted, an effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Thus, even if the Veteran's has been experiencing tinnitus since 1989, his July 2010 claim is clearly the later of two dates specified by law.
Hence, on this record, an earlier effective date is not assignable by law.
III. PTSD
In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2014).
Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f) (2014). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a) (2014).
There are several avenues to document an in-service stressor, other than obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to Veteran's fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f) (2014).
Lay evidence may also establish an in-service stressor if the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 C.F.R. § 3.304(f)(2) .
A medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997), but see Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011) (holding Cohen is not applicable to cases based upon in-service personal assault).
A. Analysis
The Veteran is seeking service connection for PTSD. Upon review, however, the record does not indicate that he has been diagnosed with PTSD. The Board notes that while the Veteran requested to be evaluated for PTSD in April 2010, the treating clinician noted that his "main problems are his substance abuse history and mood disorder-depressive disorder, not PTSD." VA treatment records also note that the Veteran underwent PTSD screening that did not reveal the presence of PTSD. See a July 2009 VA treatment record. Phrased differently, clinical testing revealed that the Veteran does not have PTSD and while the Veteran has requested additional counseling for PTSD, his treating clinician indicated that he did not have this disorder.
Significantly, during the May 2014 hearing, the Veteran, through his representative, reported that he does not have PTSD. See Board Hearing Tr. 5. Instead, it was suggested that the Veteran's original claim for an acquired psychiatric disorder was inappropriately bifurcated into PTSD, and a psychiatric disorder other than PTSD.
To the extent that the Veteran now contends that he has PTSD, he is not competent to provide such a diagnosis. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) ("PTSD is not the type of medical condition that lay evidence, standing alone, is competent and sufficient to identify."). Although the Veteran has sought VA treatment for PTSD, as noted above, a qualified health-care provider reviewed his complaints and determined that he does not have PTSD. In the absence of PTSD at any time during the appeal period, service connection may not be granted. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of a claimed disability, there is no need to discuss the remaining two elements.
In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for PTSD. The benefit sought on appeal is accordingly denied.
IV. Acquired Psychiatric Disorder Other Than PTSD
In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson, supra; Jandreau, supra; Buchanan, supra.
A. Analysis
The record reflects that the Veteran has been diagnosed with depressive disorder, anxiety disorder, and bipolar disorder. See VA treatment records dated January 2010, April 2010, and June 2010. A current disability has therefore been demonstrated.
With respect to the second Shedden element, the Veteran testified that he has an acquired psychiatric disorder because he was not enthusiastic about his in-service responsibilities. See Board Hearing Tr. 8, 13. He also reported that he was harassed "by the service" and mistreated by his supervisors. Id. at 11; see also April 2010 VA treatment record.
Upon review, the Veteran's service treatment records do not document any complaints, treatment, or diagnosis of an acquired psychiatric disorder. In fact, during his February 1983 separation examination, it was noted that his psychiatric examination was normal. Phrased differently, the Veteran was examined at the time of his separation from service and no psychiatric disabilities were identified.
To the extent the Veteran contends that he was harassed by his supervisors while on active duty, pursuant to Patton v. West, 12 Vet. App. 272 (1999), the Board has closely examined the record for a reduction in efficiency, problems with authority figures or anything out of the ordinary which would be suggestive that a traumatic event occurred.
The Veteran's service personnel records include a September 1981 performance report which note that his "military bearing and behavior required supervisory attention and correction." However, the same performance report notes that the has performed his duties in an "overall excellent manner." Furthermore, subsequent performance reports indicate that the Veteran's performance had improved and his "most outstanding strengths are his military bearing, behavior, and personal appearance." See a March 1982 performance report.
The Veteran's service personnel records do not suggest that he was harassed at any point and his performance appraisals do not reflect a reduction in efficiency, problems with authority figures or anything out of the order that would suggest a traumatic event had occurred. In fact, the Veteran's service personnel records indicate that he consistently received high marks for his performance records. This tends to contradict the veteran's recollection that the feedback he received from his supervisors rose to the level of harassment.
Accordingly, based on the absence of an in-service disease or injury, the second Shedden element has not been met, and the Veteran's claim fails on his basis alone
With respect to the third Shedden element, the record does not contain any competent or credible evidence which addresses the etiology of his diagnosed psychiatric disabilities.
To the extent that the Veteran contends that a relationship exists between his psychiatric disabilities and service, his belief does not constitute competent evidence and cannot be accepted by the Board. This is because, as noted above, the Veteran's psychiatric disabilities require medical expertise to diagnose; such disorders are not capable of lay observation in the same way that tinnitus, flat feet, and varicose veins are. Again, the Board notes that the Veteran's reports of current symptoms are wholly competent and credible, but as there is no competent nexus evidence, service connection on this basis cannot be granted.
During the Board hearing, the Veteran testified that Dr. R.C. informed him that he had an attention deficit disorder that was aggravated while on active duty. See the Board Hearing Tr. at 7. The Board notes, however, that the record contains a September 2002 letter from Dr. R.C. who indicates that the Veteran has chronic attention deficit disorder. There is no suggestion that this disability was due to, or aggravated by, the Veteran's active duty service. Further, the Board notes that while the Veteran authorized VA to obtain his records in May 2003, he was notified in a July 2003 letter that VA had made multiple attempts to obtain these records but was unsuccessful. He was notified that it was his responsibility to see that VA receives them them.
Moreover, there is no evidence that the Veteran had an acquired psychiatric disorder prior to his active duty service. The presumption of soundness has therefore not been rebutted.
While cognizant that the Veteran has also been diagnosed with a substance abuse disorder, the Board notes that direct-incurrence service connection may not be granted for a disability due to a veteran's willful misconduct, or for claims filed after October 31, 1990, for disability the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a) (2014).
In sum, as there is no competent and credible evidence of a relationship between the Veteran's current disability and his active duty service, the third Shedden element has not been met and the Veteran's claim must be denied.
In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. `App. at 55-57.
ORDER
Entitlement to an effective date earlier than July 15, 2010 for the grant of service connection for tinnitus is denied.
Service connection for PTSD is denied.
Service connection for an acquired psychiatric disorder, to include bipolar disorder, is denied.
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JAMES D. RIDGWAY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs